Jordan v. Underhill — 76 N.Y.S. 95

Majority

p. 95

(71 App. Div. 559.)

JORDAN et al. v. UNDERHILL.

(Supreme Court, Appellate Division, First Department.

May 9, 1902.)

Headnote

Action for Accounting—Reference.

In an action for an accounting, where the right thereto was made an issue, a reference to take and state the accounts between the parties should not have been ordered until it had been determined by an interlocutory judgment that the plaintiffs were entitled to an accounting; and until this question had been determined the court had no power to refer.

Appeal from special term, New York county.

Action by Nina Jordan and another against Edward C. Under-hill. From an order referring the issues to a referee, defendant appeals.

Reversed.

p. 96

Argued before VAN BRUNT, P. T., and HATCH, McLAUGHLIN, and INGRAHAM, JJ.

J. A. Koones, for appellant.

G. D. Deane, for respondents.

This action was brought for an accounting upon the part of the defendant, who had been acting as agent and quasi trustee for the plaintiffs in reference to certain moneys and securities and the investment and reinvestment of the same, and the collection of the interest thereon. The defendant answered, and, among other defenses, set up the facts that prior to the commencement of this action he had commenced an action against the plaintiffs for the purpose of having fixed the value of the services rendered to the plaintiffs as their agent, and alleging many of the facts contained in the plaintiffs’ complaint herein. In this condition of the pleadings, a motion was made for a reference, which was granted. We think this was error. A reference could only be ordered to' take and state the accounts between these parties after it had been determined by an interlocutory judgment that the plaintiffs were entitled to an accounting. That had to be determined upon the trial of the issues raised by the pleadings. Upon that trial the defendant would have a right to present the fact of a prior action as an answer to the claim for relief in this action. If the plaintiffs establish their right to an accounting, an interlocutory judgment adjudging this fact should be entered, which judgment should direct the accounting to proceed before a referee to be therein named. Until this question of the right to an accounting had been determined, there was no power in the court to refer. A reference of all the issues, therefore, was improper, and the order appealed from must be reversed, with $io costs and disbursements, and the motion denied, with $io costs. All concur.